Archive for the 'Retailers' Category

When Competing Policies Collide

It is a basic premise of business that good managers do not allow short-range tactics, taken in response to immediate contingencies, to derail long-range strategies. This principle came to mind when I read a story in this week’s BNA Product Safety and Liability Reporter. The story discussed efforts by Wal-Mart Stores Inc. to put in place initiatives to reduce the environmental impact of the products it makes and sells. The story made clear that these efforts by Wal-Mart, and lauded by environmental activists, will be felt throughout the supply chain.

What especially caught my eye was the following portion of the story:

“Wal-Mart’s other environmentally friendly initiatives include:

• working with suppliers to increase the use of recycled content and to make packaging more recyclable. . .”

When I read this, I could not help but think back to the CPSC’s decision back in 2011 mandating the lead content of children’s products not be above 100 parts per million. You will recall that Congress set the limit at 300 ppm but allowed us to lower it to 100 ppm unless that level was not technologically feasible. The Commission decided to require the lower level even though this would drive many manufacturers to substitute more expensive materials in their products and even though our staff could not point to specific safety benefits (higher costs and consumer choice were certainly not factors in our thinking, of course).

However, more to the point, the staff specifically stated that, at the 100 ppm level, recycled materials would not be able to be used in children’s products and that virgin materials would need to be substituted. This is not because recycled materials do not necessarily meet the 100 ppm level, but because the testing we also require would not be predictive of what was actually in the product. In other words, because recycled materials, by their nature, are not necessarily consistent throughout, something could test at 90 ppm in one spot (passing our standard) but test at 120 ppm in another (failing our standard).

It is so unfortunate that the agency made no effort to try to reconcile the competing public policies—public health and environmental sustainability–at work here.  It would not have been hard for us to keep a lead content ceiling in place that was appropriately protective of health and still accommodate the government-wide policy to increase our use of recyclables. Exceptions for certain products that must and should be made out of virgin materials could easily have been integrated into such a policy. The commission clearly had, and has, the authority to do this, but in its regulatory exuberance, short-term reactive thinking trumped long-term creative problem solving.

So, kudos to Wal-Mart and other companies for their efforts to find environmentally friendly ways to make and sell products. It’s too bad that we have put up an unnecessary hurdle to that effort. Instead we could have come up with a solution that would have reconciled the important public policies of health and environmental stewardship. I wish we would have at least tried.

In the Back Room or in the Open…

Where should policy be developed?

Recently, the Commission raised eyebrows around the product safety community by effecting what many see as a broad policy shift through two privately negotiated settlement agreements. Of course, I am referring to the issue of requiring all-inclusive compulsory compliance programs as a condition to settle alleged failure to report violations, using as a justification for this action the existence of past voluntary recalls. This blog is to bring you up to date on the state of play.

First, I had an exchange with my colleagues about our settlement with Kolcraft, where my colleagues insisted on adding the compulsory compliance program language at the last minute after an agreement had been reached between counsel for the company and the agency. I expressed my disagreement with the decision, while my colleagues jointly endorsed it. Second, mere weeks later, we approved a settlement with Williams-Sonoma that included the identical requirement. Though I voted to approve—on the basis that the company was well-represented and agreed of its own will—I still felt uneasy about using the enforcement vehicle for this apparent policy shift, undermining both the efficacy of the settlement and the legitimacy of the policy, which deserves public input. This began an “unusual” back-and-forth with one of my colleagues, with his statement, my supplemental statement, his supplemental statement, my further supplemental statement and so on, with the latest pingpong volley occurring today.

These settlements, the identical language they share, and the emerging policy they represent all demonstrate that this is an important issue. So important, in fact, that it’s a conversation we should be having more publicly and with more participants.

As I have stated many times, I fully support corporate compliance programs. They are one way a company can build a commitment to safety into all of its products. And there may be a role for CPSC in getting more companies to institute compliance programs, but, whatever that role is, it’s one we should play in public. If we are going to require them, we should not do that through privately negotiated settlement agreements but instead should engage the public in the conversation so that we fully understand the implications of this policy.

The whole purpose of a multi-member commission is to make sure various views are heard and rules are the product of engagement and discussion. So, let’s engage and discuss.

Making a List, Checking it Twice

As you get started on your holiday shopping this weekend–Black Friday and Cyber Monday are upon us–you’ll want to keep your eyes open for a lot of things: a great deal, that can’t-miss gift, a parking spot that isn’t in the next county. There are, however, some other things you’ll need to keep an eye out.

  •  Look out for drawstrings on children’s clothes. They can easily get caught in playground equipment, furniture, or other objects and pose an entrapment or strangulation hazard. Earlier this year, at my urging, CPSC found that neck drawstrings in children’s clothes sized 2T to 12 are substantial product hazards. They shouldn’t be on the shelves anymore. If they are, they certainly shouldn’t be on your children.
  •  When you’re choosing toys and clothes, make sure they’re age appropriate for the child. Working with CPSC and industry groups, manufacturers have gone to great lengths to decide the right age range for their products, and those should be noted right on the packaging. Look for the label and take it seriously.
  •  A big part of those ratings is choking hazards. Always remember one simple rule: If kids can put something in their mouths, they will. Make sure toys for younger children do not have small parts that can easily pop off or break off. Small magnets and tiny button batteries pose special hazards. If swallowed, magnets can stick together inside the body and injuries like punctured intestines or blood poisoning can result.  Button batteries, if swallowed, can also result in severe internal injuries. 
  •  If a new TV is on your list, look for a good, safe place to put it. Children have been injured and killed from TVs tipping over and falling on them. A professionally-installed wall mount might be the best plan, but, if your new set will be standing on furniture, make sure to pick up some anchor straps. They’re an inexpensive way to prevent an unimaginable tragedy.
  •  If you’re picking up a tree to put those goodies under, keep a few things in mind. For natural trees, green is good. Not only will a fresher, greener tree look and smell nicer for longer, it will also be less of a fire risk. For artificial trees, look for “Fire Resistant” on the label. For either kind of tree, keep it away from heat sources.
  •  When you’re putting the lights up, check them for bare wires, loose connections, or cracked or broken sockets. If it’s time to replace them, look at the labels. Make sure they’re lab tested and make sure they’re certified for the use you’re planning: Outdoor displays need outdoor lights.
  •  Finally, if a power outage turns a bright holiday into a dark one, use care when you pick your solution. Keep candles away from flammable surfaces, and do not use a generator indoors. The carbon monoxide fumes can build up and suffocate quickly.

As much as CPSC, manufacturers, and retailers have worked , and continue to work, to make every product on the shelves as safe as it can be, there will always be some risks, and people will make some mistakes. We have put out a lot of new rules this year, and, while I haven’t agreed with all of them, I will always support the goal of making products safer. But safety is a joint effort shared by regulators and consumers. In many ways, you can do more to keep your family safe than my colleagues and I ever could, just by staying informed and making sound, responsible decisions.

The holiday season should be a time for family and fun, not emergency room visits or worse. A little information and a good dose of caution can help ensure your holiday is a safe and happy one.  Have a wonderful Thanksgiving and a safe and joyful holiday season!

Setting the Record Straight: the Crib Rule

The Chairman has recently made several pointedly hostile, but grossly inaccurate, statements that warrant correction. One of the most egregious is her accusation that with our new crib rule, I have sought to put the interest of “a few retailers” over the interests of children. What utter nonsense!

This agency has always viewed children as a special constituency and has a long history of working to assure a safe sleep environment for them. That work intensified in 2007 when, as acting chairman, I established a cross-cutting, multidisciplinary team to do a comprehensive look-back at incidents involving children’s sleep environment to better determine hazard patterns. In 2008, while I was still chairman, the agency issued an Advanced Notice of Proposed Rulemaking informing the public that we were developing a new mandatory crib standard and seeking information. We were doing this work at the same time that the American Society for Testing and Materials (ASTM) was working to develop its new voluntary crib standard, and CPSC staff joined in that effort as well. ASTM issued its standard in 2009, and that provided much of the basis for the 2010 CPSC mandatory standard. The agency proposed to adopt the ASTM standard with two changes in mid-2010 and finalized the mandatory standard in December, 2010, to go into effect 6 months later. All this work was done with the full support of all the Commissioners.

So where is the problem that the Chairman alludes to? While I support what is in the new crib standard, I am very troubled by the chaotic manner in which we implemented it. Because we did not do a cost-benefit analysis that looked at regulatory impacts and alternatives, we did not even know that this was a major rule – having an impact on the economy of over $100 million – until literally days before the Commission was about to vote on the final rule. (The crib rule is only the second major rule in the history of the agency.) Only at that point did it become apparent that this rule would do major damage to the child care industry, which would be required to replace every single crib in every single child care center in this country. The hotel industry also told us that they would have to stop making cribs available to guests because of this rule. In response, we delayed the effective date for these two industries for two years – a date that was arbitrarily chosen by the Commissioners with no data behind it. For everyone else, it would be illegal to make or sell a crib that did not comply with the new standard (even if that crib did meet the 2009 ASTM standard) after June 28, 2011.

During the spring of 2011, we began to hear rumblings of trouble with respect to this rule. CPSC began accrediting labs only in late spring because the labs were having trouble doing the tests we required. Supply issues were starting to pop up. Although the scant economic analysis we had done prior to issuing the rule told us that retailers would not be impacted by it, we started to hear from retailers that the assurances they had received from manufacturers about the availability of retrofit kits for current inventory were not being met. (By the way, CPSC rushed to put out its guidelines on accepting retrofit kits only 72 hours before the crib standard was to go into effect.) In the late spring, we did a “quick and dirty” survey of five retailers and found at least 100,000 non complying cribs in inventory. We then heard from an association representing smaller retailers requesting an additional three months before the crib standard went into effect for retailers. At the same time we heard from the leasing industry also asking for a delay in the effective date.

The reaction of the various Commissioners is instructive. Commissioner Northup and I believed that the modest additional time the small retailers requested was reasonable, if the cribs in inventory complied with the new 2009 standard and were not the drop-side cribs that had created much of the concern. Among other things, this short extension would allow for retailers to get the retrofit kits manufacturers had promised so that they did not have to “trash” perfectly good cribs. While the majority of my colleagues were fine with giving the leasing industry an 18-month extension, they refused to give a 90-day extension to small retailers. Apparently the majority thinks that children in child care, in hotels and in leased cribs (regardless of whether they are drop side cribs or what the crib’s condition of repair is) do not warrant the extra protection, but a short extension so that thousands of perfectly good cribs do not have to be destroyed is not warranted. That is reasoning that I do not agree with.

It is unfortunate that the Chairman believes that anyone who does not agree with her is automatically “anti-consumer.” It is unfortunate that the Chairman sees “obstructionism” when constructive dissenting views are offered. It is unfortunate that the Chairman selectively interprets both facts and words and unfairly impugns her colleagues. Mostly, it is unfortunate that the Chairman cannot work with us to fashion rules that protect American families without imposing job-killing requirements on those same American families.

Click here for more information on the Chairman’s false accusations.

A Conversation I Wish We Weren’t Having

When I started this blog, I wanted it to be an open conversation with consumers, companies and those who are impacted by what the CPSC does.  The feedback I have gotten has been very helpful in informing my thinking on the various issues we are called upon to address. 

Today a majority of commissioners decided to discount the concerns that a number of small retailers have raised about the effective date of our new crib standard.  I believe that the majority made the wrong decision.  I believe that a modest extension of the rule’s effective date will not impact safety but will help small retailers.  I want to share with you a note I received in response to this vote.  This note sums up the issue better than I ever could and makes fighting the good fight worth it.

Commissioner Nord, I just wanted to take a moment to thank you for your support of our family’s small business in this morning’s Commission meeting. The outcome is sad & will, without a doubt, have a significant impact on medium size specialty stores (with built up inventory) such as ourselves. It is a shame that one . . . competitor (in business 7 years & borrowing to buy cribs at all) was so vocally against helping other specialty retailers. We have been in business 40 years & pay upfront for all of our merchandise. I’m ashamed to be in the same market & category as this other retailer. Thank you for your efforts on our behalf. My family really does appreciate it. From the bottom of our hearts,

HOW MUCH TESTING IS TOO MUCH TESTING? Or, Button, Button, Who’s Got the Button? (and who tested the button? certified the button? materially changed the button? periodically tested the button? randomly sampled the button?)

Today the Commission is putting out for comment two proposed rules for doing the testing required by the CPSIA.   It is important that the basic rule be in place before the testing and certification stay of enforcement is lifted in February 2011.  Given the importance of this rule, we need to hear from the public about whether this proposal gets close to being right. 

This proposed rule, in an unprecedented way, puts federal regulators onto the factory floor.  The proposed rule is over 170 pages long and is by its nature very complex.  I am not confident we have written a rule that works for all the products under our jurisdiction.

One important aspect of the proposal deals with component testing and certification.  If suppliers of the paint or the resin or the buttons and zippers that go into a product are willing to test and certify for compliance, it is wasteful to also require the manufacturer who is using those components to repeat the testing.  This only makes sense.  However, if the components are going into children’s products, they need to be tested by a third party laboratory approved by the CPSC.  Further, the component maker is also responsible for doing periodic testing and for testing when a material change takes place, as is also required by the statute. 

We are hoping the component testing rule will result in the development of a market for third party tested components to especially help small businesses.  During my recent trip to China, I specifically asked various manufacturers whether component testing would address the concerns I was hearing about the immense costs of testing.  Several manufacturers told me they were already seeing tested components being advertised.  Others told me that for commodity type products, such as wire, it is unlikely such a market will develop.  I would be interested in your thoughts on how component testing will help you and what more we can do to develop this process.

In a statement I filed today, I lay out some of the serious concerns I have with the proposed rule.  This proposal will be open for comment for 75 days.  The text of the rule tells you the process for submitting comments.  I urge you to weigh in.  We need to hear from you before you’re told what testing you’ll have to do year after year, product after product.

Test the Testing?

Retailers play an important role in helping assure safety, especially under the CPSIA.  Unfortunately, the law’s provisions about retroactivity and general enforcement by state attorneys general, among others, have led many retailers to demand testing beyond what is required.

To help fix that, I have been pushing for a Commission statement to reinforce the fact that retailers may rely on the testing and certification done by their suppliers. 

How would this work? The CPSIA and its regulations require domestic manufacturers and importers of children’s products to have them: 1) tested by a third party testing laboratory approved by the CPSC; and 2) certify compliance with applicable safety regulations based on those tests.  Importers may rely on testing done by foreign manufacturers as long as that testing was done in an approved lab.

My proposal is an enforcement policy to make clear that  retailers may rely on certificates from suppliers and that they would not be subject to penalties for selling products that do not comply with our safety standards if they relied in good faith on those certificates.  Issue a false or misleading certificate or give us a reason to believe the retailer knew or should have known that the certificate was false, and we can come after you. Should the product violate an applicable safety standard, of course it could be recalled.

 Since I hope we can get this policy out next month, help us with your input:

  • If you are a supplier, has a retailer required you to do redundant or excessive testing, or has a retailer refused to accept your test results?
  • If you are a supplier, would such a statement be helpful?  If not, what actions could the Commission take that would be helpful?
  • If you are a retailer, would such a Commission statement be helpful?
  • If you are a supplier or a retailer, what should be in this policy?

Speak up and help write this policy. Thanks!

Notes from China

Over the past week I have traveled to Hong Kong and to Guangzhou,China to talk with representatives of the apparel and toy industry about CPSIA implementation issues. Because of the complexity of this law, it is so important that we make ourselves available to those who are actually making consumer products for the US market to educate them about their safety obligations under the law. In no particular order, here are some of the things I heard:
• I heard consistent complaints about the very short comment periods being made available to those who want to have input into our various regulations. The observation was made more than once that perhaps the agency did not really welcome public comment because the comments periods where typically too short for thoughtful input. I want you to know I have been pushing for longer comment periods because your insights are both welcome and needed.
• Another theme I heard was the need for more flexibility to be built into the testing requirements. Many believe they are spending money with no real safety gain when the funds could be targeted to the areas of actual risk.
• For industries with rapidly changing inventory, such as the fashion industry, requiring random statistical sampling for all changes in product lines will result in enormous costs. There is a great deal of concern about how our soon-to-be-published proposed rule on periodic testing will impact this industry.
• There is great hope that component testing will offer some solutions to decrease costs and increase efficiencies. However, I got conflicting messages about whether this will actually result in developing a market for third party tested component parts. In some instances, this is already happening. However, I heard complaints that, for certain commodity-type products, such as wire, there is no real way for component testing to be helpful.
• With respect to phthalates testing, the agency’s change in test methods has resulted in significantly increased costs and our list of products with either a high or low risk of phthalates has caused confusion.
• A constant theme was the need for greater harmonization. The cost of testing and complying with various standards around the world is a burden on the manufacturing process and impacting consumer choice.
• More than one company told of sending the same product for testing at various accredited labs only to get different test results back, as well as conflicting advice on what testing is required.
Talking directly to those who are trying to implement this law is an invaluable experience. I continue to welcome your thoughts as we try to roll out new requirements imposed by the law. With safety as our constant goal, we are trying to get it right but we need your input to make that happen.

Experience Counts

I received the following comment  on my recent blog “Conversations FOR Consumers”.   The commenter brings an interesting, real-life perspective to the discussion about third party testing, and I appreciate his taking time to comment. I would really like to hear from others who have real-life insights to share like this one. This kind of conversation is exactly why I started blogging. As Commissioners we don’t get to hear enough about how things like the third party testing requirement are working.  

One of my fellow commissioners, in a recent statement, dismissed the value of such anecdotal experience, stating that “the plural of anecdote is not data.”  I disagree with this attitude—it’s critical for us to hear from those who make and sell  products,  live with the regulations and laws coming out of Washington, and  who have to meet a weekly payroll to support jobs and families.  We need to hear your experiences and suggestions.  

Commissioner Nord,

I am a quality & compliance engineer for a small to mid sized family owned business in Virginia. We sell products in all of the major retail outlets in the US and Canada. Having experience working for a 3rd party consumer product safety laboratory and in the manufacturing sector, there are difficulties with the testing certification requirements in CPSIA, that certainly don’t add up.

Although my company has policies and processes in place, and relationships with factories that date back decades, our situation isn’t like most importers of Chinese produced goods. I am not one to point the finger at China and declare that all factories there produce hazardous products, because I know this isn’t true. However, I do understand the Chinese manufacturing culture and know first hand from past positions I have held, that if given the opportunity, many factories will “roll the dice” and ship merchandise that contains chemicals and elements regulated by CPSIA and other consumer product Act’s. Fortunately for me, I have a close knit group of factories, whose interest is in shipping safe and fully compliant products. It goes way beyond financial investment.

Where I do see the confusion is in the testing certification. On one side, components are allowed to be tested and proof of compliance available upon request. The other hand, full products are tested and proof of compliance available upon request. Either way, a test report from a CPSC approved 3rd party lab is only as good as the samples the lab received; it doesn’t always reflect what was actually shipped. Those factories willing to roll the dice will ship what they have or what is cheapest, if no one is looking. If there is no market enforcement, they will continue to do so until they are caught. This is precisely what happened with Mattel. Their factories weren’t policed prior, during or after production. They probably got away with shipping this merchandise with lead for years before the recalls.

I dont think 3rd party testing is necessarily the answer or proof that either the CPSC or Congress expects. The theory is a good one, but the execution and reliability of that theory aren’t a true reality. Of course, CPSC product procurement and testing, which results in recalls (mandatory or voluntary) and civil penalties, will have everyone scrambling to ensure a compliant product is shipped.

I think the mandates for compliance are possible; they can be met in every consumer product category, but the responsibility lies with the owner of that product; the person who imports and brands the product. They are responsible for implementing the proper systems and procedures far in advance of a production run, to ensure that no product is contaminated. No 3rd party test lab report will identify what “truly” goes on in a factory. Testing is not necessary to ship product, because it doesn’t always reflect what is actually inside of the container.

I appreciate the work you have done with the commission and I contiually look for your blog updates and have been present at several of your speaking engagements over the past several years. Keep up the good work Mrs. Nord, we appreciate you!

Conversations FOR Consumers

I applaud the fact that the CPSC and Congress have entered today into a formal dialogue on what needs to be done to address serious unintended consequences of the CPSIA.  The agency report  sent to Congress today touches on several important issues and contains some very helpful recommendations. All five Commissioners believe these recommendations will facilitate more orderly implementation of the CPSIA and enhance Commission enforcement efforts.  The report:

  •  acknowledges that the agency needs additional flexibility to implement the lead provisions of the CPSIA, though it does not address how that flexibility should be crafted (since we could not reach agreement on that point);
  • acknowledges that books probably were not intended to be regulated under the CPSIA and suggests that Congress may want to consider addressing this issue;
  • recommends that the retroactive nature of the law be repealed as the lead limits move from 300ppm to 100ppm; and
  • outlines the efforts the agency has made to date to assist small manufacturers and artisans in complying with the CPSIA and states our willingness to work with Congress to address the problems small manufacturers continue to face. 

While this report is a good start, there are additional changes that need to be made and I have discussed some of those in a separate statement I filed with the report.

Congress sent a clear message to the CPSC in its recent conference agreement for the FY 2010 omnibus appropriations bill.  They expressed concerns surrounding implementation of the CPSIA.

  • Congress urged the agency to continue considering exemptions that present no real risk of lead exposure for children.
    • I am recommending the scope of the CPSIA needs to be adjusted so that unintended consequences are not swept into its net in the first place. Whether by listing product categories not meant to be covered by CPSIA due to their very low risk factor, or by modifying the age limit to focus the scope of the bill on the children most at risk, either approach would dramatically increase the effectiveness of the law and decrease needless unintended consequences and burdensome regulation.

 

  • Congress noted problems for small manufacturers and crafters regarding CPSIA third-party testing requirements.
    • I am recommending small manufacturers and crafters should get appropriate relief now from certain certification and testing requirements. The agency should have the ability to assure that reasonable testing by manufacturers of small volumes or some other appropriate criteria can provide assurances of safety compliance without driving them out of business. 

 

  • Congress asked for recommendations for improvement of the statute.
    • Among other things, I am recommending the CPSIA should not hinder thrift shops, charities, and secondhand stores from selling used children’s apparel and other products. It’s crazy if people are not able to buy winter coats for their children at a thrift store because of the CPSIA. 

 While the report’s recommendations may seem modest to those who have been trying to comply with the CPSIA on a daily basis, please remember that this is a step forward and provides a foundation on which to build.  Filed with the report is my statement making additional recommendations.

The focus is now on what Congress will do with this information. I stand ready to help in any way that I can.

View the report sent to Congress here.

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STATEMENT OF COMMISSIONER NANCY NORD ON THE COMMISSION REPORT TO CONGRESS PURSUANT TO STATEMENT OF MANAGERS ACCOMPANYING P.L. 111-117

January 15, 2010

My fellow Commissioners and I, together with the agency’s staff experts, have been working diligently to respond to the request of Congress for recommendations on how to change the CPSIA. Our bipartisan approach has produced a report that is a good step in the right direction.  While the report identifies several recommendations with which all the CPSC Commissioners agree, it stops short of addressing all the issues that need to be considered before the CPSIA can truly become the constructive force for consumer protection envisioned by the Congress when it passed the legislation.  The law contains a number of useful new tools, many of which were requested by the agency, to better position the CPSC to act more quickly and effectively to protect consumers.  However, there are aspects of the law that limit the flexibility of the agency to act appropriately and, as a result, we have seen unfortunate, unintended consequences flowing from the law’s implementation.  I have been requesting for some time that the Congress address these problems and I appreciate the opportunity to contribute to that process.  The recommendations in the report represent a good start, but the conversation about how to fix the problems with the CPSIA needs to go further.  I have listed below some of the critical changes that need to be made to the law.  

 1.   Lead Exclusions and the Process for Granting Exclusions

 There is absolutely no disagreement over the need to limit children’s exposure to lead.  However, the language of the CPSIA is drafted so tightly that the exclusions process in the law, which Congress intended for the agency to use, is not workable.  The law limits the agency’s ability to focus on products that present actual injury or harm to children.  The CPSC scientific staff has told us that they are not aware of any product that could meet the exceptions requirements of the law and hence have had to recommend denial of each of  the petitions for exclusions that have been considered.  This is in spite of the fact that staff has told us with each petition for exclusion that the products in question do not present a risk of harmful exposure to lead.

Over the past 18 months, staff has taken thousands of hours away from dealing with ongoing, significant safety concerns to consider issues such as the following:

  • Determining whether to exempt ball point pens, which have a tiny brass tip that holds the ball.  That brass tip contains lead over the statutory limit.  After much deliberation, the Commission decided that a pen that is used by both adults and children is not a children’s product and is not subject to the law but if that same pen is decorated with brightly colored cartoon characters it may fall within the reach of the law and if so, could not be sold.
  • Determining that it is illegal to sell children’s products containing crystals or rhinestones which, by necessity, contain more than the statutory amount of lead and for which there is no suitable substitute.  This is true even though the lead in rhinestones and crystals does not easily leach out and even though a child could be exposed to more lead from products that meet the statutory requirements than from exposure to rhinestones and crystals. 
  • Determining how to allow for the continuing sale of children’s bicycles even though some parts contain lead, e.g. the Schrader valve used to put air in the tire.  Many bicycles are made with recycled metal that also may contain lead at levels that are unpredictable and not easily controllable but which may exceed the statutory limits.  In this case, a stay of enforcement was the only way to avoid an unacceptable regulatory result – banning children’s bicycles – flowing from applying the statute to this product.
  • Determining that a brass collar and other brass components of die-cast toys are prohibited even though staff reported there is no real risk of harmful lead exposure.  The implications of this decision for other products containing brass, not only those in the home, but also in our schools – such as desk hinges, locker handles and coat hooks – are significant and far-reaching.

 The agency needs flexibility to deal with products that contain lead over the statutory limits but which do not present a risk to children.  The Congress specifically asked the agency to look at risk and exposure in crafting a solution to this problem.  To solve the problems we have had in applying the exclusions language of the current statute, Congress needs to give the agency the flexibility to look at whether there is a real risk of lead exposure based on the child’s interaction with the product and the extent to which that interaction results in a measurable increase in the child’s blood lead levels, rather than the absolute language that is now in the statute.  This would address the conferees direction to look at risk and exposure and the many concerns expressed by individual members of Congress, including primary sponsors of the law, who have indicated that they thought the statute contained this flexibility.  As we do this analysis, it is important to look at how other jurisdictions and agencies address lead exposure so that we consider consistent requirements where appropriate.

In addition, additional thought should be given to the scope of the law.  There are certain products – most toys and children’s metal jewelry, for example – that warrant aggressive regulation with respect to lead.  There may be others – books, educational products, sporting equipment and apparel, for example – where there is less concern.  Congress should either write the law specifically to spell out what they want included and excluded, or they should give the agency sufficient flexibility to regulate appropriately.  This could be done either by product category or by age.  With respect to age, the agency has extensive experience in dealing with the ways that children of different ages interact with consumer products.  The CPSIA does not allow flexibility for the agency to utilize this expertise.  It treats all children – infants to pre-teens – the same, and, as a result, our regulatory decisions cannot be tailored to meet the requirements of the age of the child and thereby apply the most effective solution for the greatest risk and exposure.  Lowering the age requirements of the statute and making clear the agency’s ability to regulate upward as safety circumstances warrant, would go a long way to solving many of the problems in the law and keeping the agency’s resources focused on providing real protection for consumers.

2.   Testing and Certification/Small Manufacturer and Crafter Concerns 

 The agency and the Congress have heard from many small manufacturers and crafters that are being severely and adversely impacted by the CPSIA.  Indeed, a website has been established that tracks the demise of businesses attributed to the law.  The testing and certification requirements are at the heart of the complaints being made by small manufacturers and crafters.  The agency has worked hard, within the confines of the statute, to deal with the issues small manufacturers and crafters are facing as they struggle to meet CPSIA’s requirements, but our options are limited.  Our report points to the guidance booklets we have published, the component testing enforcement guidance and possible regulatory relief in the so-called ‘15-month rule’ dealing with frequency of ongoing testing.  It is not clear that the problems small manufacturers and crafters are having now can be adequately addressed with more education, a policy on components that is still unimplemented and unproven, and by the promise of future regulatory action, months from now, that treats only part of the problem. 

While independent third party testing is the most robust way to provide assurance of compliance, it is also the most costly and least efficient.  The requirement that all children’s products be third party tested has raised the cost and added to the complexity for many small producers of children’s products.  The application of this requirement to handcrafted products made by individual artisans has raised serious concerns about their continued viability.  While we hope that our component testing enforcement policy will address some of this concern, we have been told that this is not a panacea and more must be done.  In addition, small producers face higher testing costs, are receiving conflicting information from testing labs about what must be tested, and are facing barriers from retailers who are requiring redundant testing or additional testing to be done by laboratories they specify, often at prohibitive cost. 

Given all this, Congress should consider whether child safety can be served by other testing alternatives that will assure adequate compliance testing without the cost and complexity of third party testing.  Specifically, the agency should have the ability to establish, by rule, alternative testing requirements for certification under section 102 of the CPSIA for manufacturers based on small volume or other appropriate criteria, as long as the requirements provide for a reasonable testing program and such other provisions as the Commission deems necessary to provide reasonable assurance of compliance with underlying consumer product safety rules.

 3.   Retroactivity

 The report’s recommendation that retroactivity not apply when the lead provisions of the statute transition from 300 ppm to 100 ppm is the minimum that must be done to address the significant losses that businesses have incurred because of the retroactive nature of the statute.  The problems with retroactivity have been exacerbated by retailers who have required the lower limits ahead of their implementation dates in the statute, stranding safe inventory that cannot be sold.  Although it is unfortunate that a recommendation could not have been made and acted upon a year ago to forestall the economic losses that have already been suffered, it is imperative that it be implemented as soon as possible.

We are seeing the same phenomenon occur with respect to phthalates, where the testing process to determine the presence of phthalates is much more difficult than is that for lead.  The CPSIA permanently banned three types of phthalates and banned, on an interim basis, three other types until more health data could be assembled and analyzed.  A Chronic Hazard Advisory Panel is being convened according to the timetable set out in the CPSIA, to look at the health effects of the various phthalates banned on an interim basis by the statute.  The Commission is trying to define the universe of products to which the phthalate ban is applicable, is still working on a test method to determine the presence of phthalates in those products, and has not yet approved a laboratory accreditation process.  Unlike lead, there is no screening test to more easily determine the presence of phthalates.  It is unreasonable to require that retailers and resellers either face potential liability or go back through their inventory to try to determine the presence of phthalates when we do not even have a test method in place, putting aside questions of testing practicality and affordability.  Congress should consider clarifying that this provision will not apply in a retroactive manner.  At the very least, retroactivity should apply only to the three permanently banned phthalates. 

Finally, the recommendation with respect to retroactivity does not go far enough since it does not treat sales by charities, consignment shops and other resellers.  For example, we have been told that many of the charities are not selling children’s apparel because of the potential liability imposed by this law.  Obviously, it is crazy for people not to be able to buy their children winter coats or boots at a Goodwill store or at a yard sale.  Yet that is where the CPSIA leads us and I doubt Congress really intended this result.  The agency has an excellent working relationship with charities such as Goodwill and the Salvation Army, and our regulation of these groups should focus on stopping the sale of recalled products.  Congress should act to assure that the products parents need to buy are available in the resale market. 

Conclusion

This statement is not intended to be a comprehensive description of all the implementation issues we have seen with respect to the CPSIA. I have focused for the past 18 months on the major challenges we have faced in implementing this law.  As Congress reflects on the implementation issues presented by the CPSIA, there are a number of other things – both technical and substantive – that should be considered, including coordination with the state attorneys general in enforcing the law and issues related to improving the agency’s database. 

Please be confident that the Commission shares the commitment of the Congress to assure American families that products on store shelves do not present an unreasonable risk of injury.  These recommendations are given in the spirit of finding a path forward that, while minimizing unnecessary regulation, assures parents that the products they buy are as safe as possible for their families.


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